关于投标文件密封检查存在的问题怎么解决?

网址:http://www.biaoshufang.com 时间:2019-07-12

关于招标文件的密封检查,《政府采购法》无相应规则,仅18号令有规则,第三十一条:“招标人应……将招标文件密封送达招标地点”;第四十条:“开标时,应由招标人或其推选的代表检查招标文件密封状况,也可由招标人拜托的公证机构检查并公证……”;第五十六条:“……对未按招标文件规则请求密封、签署、盖章的招标文件,应在资历性、契合性检查时按无效招标处置”。18号令执行10多年的理论证明,上述规则存在如下缺陷,希望此次修订能对此作出修正。

Regarding the sealed inspection of tender documents, there are no corresponding rules in the Government Procurement Law. Only Order No. 18 has rules. Article 31: "The tenderer shall... Article 40: "When opening a tender, the tenderer or his elected representative shall examine the sealed status of the tender documents, or the notary institution entrusted by the tenderer may examine and notarize the tender documents." Article 56: "... For bidding documents that are not sealed, signed or sealed in accordance with the rules of bidding documents, they shall be disposed of in accordance with invalid bidding when they are checked for seniority and conformity. The theory that Decree No. 18 has been implemented for more than 10 years proves that the above-mentioned rules have the following defects, and I hope this revision can make amendments to them.
①招标文件密封视为招标人的义务而非权益:招标人均有激进本人商业密秘不被别人知悉的激烈动机,因而密封招标文件是其自发请求和行为,也是是其权益,可自主决议如何实行。但18号令把招标文件密封作为招标人的义务来规则,且规则密封不契合请求要承当招标文件被拒收或被判无效标的法律结果。
(1) Sealing of bidding documents is regarded as the obligation rather than the rights and interests of the bidders. Each bidder has a strong motivation to be radical in his business secrets and not be known by others. Therefore, sealing of bidding documents is his spontaneous request and action, as well as his rights and interests, and he can decide how to implement them independently. However, Order No. 18 regulates the sealing of tender documents as the obligation of the tenderer, and the sealing of the rules does not meet the requirements of accepting the legal results of rejection or invalidation of tender documents.
②无一例外请求对招标文件停止密封检查:事实上,在开标现场各方当事人视野范围之内和技术设备全程监控之下,招标文件材料被抽取、改换和内容被窜改、泄露已无可能。因而,包装封锁仅避免交接过程中材料滑出即可,无须作过严请求,而密封检查也已失去了应有作用。但18号令不加辨别,一概请求密封检查。
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(2) There is no exception to request that the sealed inspection of tender documents be stopped: in fact, it is impossible to extract, change and tamper with the contents of tender documents within the scope of vision of all parties at the tender opening site and under the full monitoring of technical equipment. Therefore, packaging blockade can only avoid material slipping out during handover without strict request, and sealing inspection has lost its due role. However, Order No. 18 does not discriminate and all requests for sealing inspection.
③对不同场所密封检查的目的、主体、规范规则不明白不完好:招标文件密封检查仅适用于开标前接纳招标文件的情形,有必要在接纳招标文件和开标现场停止两次密封检查,但两次检查迥然不同:接纳时检查,是代理机构为防止收到密封不严的招标文件而承当义务;开标现场检查,是为判别招标文件在代理机构保管期间能否泄密,由招标人(或其代表、公证人员)以招标文件能否被开启过为规范(18号令第三十一条中“招标采购单位收到招标文件后,应签收保管,任何单位和个人不得在开标前开启招标文件”的规则,正好照应了开标现场密封检查的规范)而停止的检查。总体上,18号令对两次检查的目的、主体、规范的规则要么不明白,要么不完好,招致理论中密封检查,特别是开标现场密封检查走形变样。
(3) The purpose, main body and normative rules of sealed inspection in different places are not clear. The sealed inspection of tender documents is only applicable to the situation of accepting tender documents before opening tenders. It is necessary to stop two sealed inspections at accepting tender documents and opening tenders, but the two inspections are quite different: when accepting the tender documents, the inspection is by the agency. In order to prevent the acceptance of sealed tender documents, the on-site inspection of tender opening is to determine whether the tender documents can be leaked during the period of storage by the agency, and whether the tender documents can be opened is regulated by the tenderer (or its representative or notary). (Decree No. 18, Article 31, "After the tender procuring unit receives the tender documents, No unit or individual shall open the tender documents before the opening of tenders for safekeeping upon signature, which coincides with the criteria for sealing inspection at the site of opening tenders and stops the inspection. Generally speaking, Decree No. 18 does not understand the purpose, main body and rules of the two inspections, or is not perfect, which leads to the sealing inspection in theory, especially the deformation of the sealing inspection at the opening site.
④未按请求密封被判无效标规范错误且程序滞后:评标时,由评委会在对招标文件作资历性、契合性检查时,对未按招标文件请求密封的招标文件作无效标处置。此项规则在判别规范上存在错误:首先,一方面开标现场密封检查是以招标文件在代理机构保管期间能否被开启为规范,不是对招标文件的密封性请求检查为目的,另一方面错误地把密封状况作为选择招标人的规范。其次,在程序上明显滞后。此时,招标文件在开标时已被开启,其密封已被毁坏,虽然有开标志录,但已无法精确判别密封能否契合规范。
(4) Failure to seal an invalid bid according to the request is wrong and the procedure lags behind: When evaluating a bid, the evaluation committee shall make qualifications and conformity checks on the tender documents, and dispose of the invitation documents that are not sealed according to the request of the tender documents as invalid bids. There are some errors in the criterion: firstly, on the one hand, on the other hand, on the other hand, on the other hand, on the spot sealing inspection is based on whether the bidding documents can be opened during the storage of the agency, not on the sealing request inspection of the bidding documents, on the other hand, it incorrectly regards the sealing condition as the criterion for selecting bidders. Secondly, the procedure lags behind obviously. At this time, the tender documents have been opened at the opening of the tender, and their seals have been destroyed. Although there are open signs, it is impossible to accurately judge whether the seals meet the specifications.
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